Herring Brook enforcement order remains in place

Members of the Scituate Conservation Commission Monday night upheld their decision to ratify an enforcement order to survey the site of a proposed 60-unit condominium development off of Route 3A.

Plans for the 60-unit condominium complex call for the project to be developed on a 15-acre parcel of land off Route 3A near what used to be Old Watson Farm. The applicant, Herring Brook Meadow, LLC, of Peabody, announced plans in November to develop the 60 units on four acres of the property, with 15 units to be reserved as affordable housing. The project is being reviewed concurrently with the Zoning Board of Appeals, which has hired two outside consulting firms to help them review the project and address concerns raised by the abutters.

Ryan Bray

Plans for the 60-unit condominium complex call for the project to be developed on a 15-acre parcel of land off Route 3A near what used to be Old Watson Farm. The applicant, Herring Brook Meadow, LLC, of Peabody, announced plans in November to develop the 60 units on four acres of the property, with 15 units to be reserved as affordable housing. The project is being reviewed concurrently with the Zoning Board of Appeals, which has hired two outside consulting firms to help them review the project and address concerns raised by the abutters.

The development would be spread out among five buildings, two of which would be nine units, two with 18 units buildings and a single 12-unit building. There would be 120 parking spaces and white pine and birch trees along Route 3A. An additional 4.5 acres would be given to the town to be protected as open space, and an additional 5.3 acres is salt marsh.

Because only 4.6 percent of Scituate’s housing stock is affordable, the project is being filed as a 40B development, which allows developers to bypass local planning and zoning regulations if a town has less than 10 percent affordable housing and 25 percent of the units are affordable.

Abutters have spoken out about the project, which would back up on neighbors’ property lines in an area that has flooded during heavy rain. While the applicant plans to fill the land to mitigate flooding in the area, residents, as well as Zoning Board of Appeals members, have raised concerns that the project may be centered in a vegetative wetland and salt marsh area.

Residents have also claim that the developer improperly delineated the land in 2003, stating that the land has since been harrowed, mowed and covered with winter rye. Rod Gaskell, the wetlands scientist representing the applicant on the project, said the winter rye was put down to protect the agricultural exemption on the land. However, abutters feel that the winter rye has blurred the wetlands boundaries on the site.

Zoning Officer and acting conservation agent for the project Neil Duggan told commission members that in light of those concerns, an enforcement order should be issued to survey the land and determine if and when the land had been tampered with. He stressed that the order be ratified before Monday, citing a three-year window the town had from the time the property was bought by the applicant until April 30 to call for the enforcement order.

“We need to take action now,” Duggan said. “We have nothing to lose and everything to gain.”

Commission members met again Monday night with the applicant’s attorneys, who requested that the enforcement order be rescinded. Attorney Peter Freeman, representing the applicant, said the order must be lifted to protect the agricultural exemption on the land. The exemption was placed on the land years ago to allow farming and harvesting in the area. Freeman criticized Duggan for not investigating into the matter fully and accused him of rushing the enforcement order to meet the April 30 deadline.

“This is wild, wild west style of judgment,” Freeman said. “You acted first and investigated later.”

Duggan said while the land must be continually harvested in order to uphold the agricultural exemption, he has received numerous affidavits from abutters stating that the land has not been farmed or harvested for 10 years. He said a Kingston resident and Watson relative who used to farm the land also corroborated that the land has not been consistently farmed.

While Stephanie Kiefer, another attorney representing the applicant, said that taking care of the land includes general maintenance such as harrowing and mowing, Curt Conners, the attorney representing the abutters, argued that such general maintenance is too loose of a standard to qualify for the exemption.

“They’ve mowed and plowed the land, but if you consider that grounds for an exemption, you’re opening up that exemption up to just about everybody,” Conners told commission members.

Duggan argued that given the applicant’s failure to prove the right to the exemption, the enforcement order should remain in place.

“The only burden here is that of the applicant’s to prove the need for this exemption,” Duggan said. “There’s no harm in upholding this order until we get answers to these questions.”

The commission abstained from voting on the Freeman’s request, thus upholding the enforcement order. Freeman said the applicant will decide whether or not to come back before the commission with a new notice of intent for a new proposal in July.